BVwG - W256 2226003-1/5E

BVwG - W256 2226003-1/5E
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 4 GDPR Article 16 GDPR B-VG Art133 Abs4 DSG §36 DSG §45
Decided:	08.03.2022
Published:	03.05.2022
Parties:	Mag. (FH) XXXX Austrian Data Protection Authority (Datenschutzbehörde) Austrian Interior Ministry (Bundesministerium Inneres)
National Case Number/Name:	W256 2226003-1/5E
European Case Law Identifier:	ECLI:AT:BVWG:2022:W256.2226003.1.00
Appeal from:	DSB (Austria) DSB-D124.1456/0003-DSB/2019
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Legal Information System (RIS) (in German)
Initial Contributor:	e.dsb

Correction of personal data in a legal notice can not be based on the right to retification.

English Summary

Facts

A data subject made an appeal to the Federal Administrative Court concerning a decision of the Austria Data Protection authority. The authority had dismissed the data subject`s complaint about a violation of the right to rectification as unfounded. The data subject had applied for the correction of data in a legal notice (Bescheid), which was in connection with investigative actions relating to the data subject's claims for compensation under the Police Powers Compensation Act (PolBEG).

Referencing to a decision of the Court of Justice of the European Union (ECJ) (ECLI:EU:C:2014:2081) the Austrian Federal Administrative Court stated that personal data legally assessed by the competent state agency in an administrative matter is not considered as information about the data subject. It follows from this that a correction of a notification cannot be based on Article 16 GDPR.

Holding

The Austrian Federal Administrative Court held that a correction of personal data in a legal notice cannot be based on Article 16 GDPR.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

decision date

03/08/2022

standard

B-VG Art133 Para.4
DSG §36
DSG §45
GDPR Art16
DSGVO Art4 Z1

B-VG Art. 133 today B-VG Art. 133 valid from 01.01.2019 to 24.05.2018 last amended by Federal Law Gazette I No. 138/2017 B-VG Art. 133 valid from 01.01.2019 last amended by Federal Law Gazette I No. 22/2018 B-VG Art. 133 valid from 05/25/2018 to 12/31/2018 last changed by Federal Law Gazette I No. 22/2018 B-VG Art. 133 valid from 08/01/2014 to 05/24/2018 last changed by BGBl I No. 164/2013 Federal Constitutional Law Art by BGBl. I No. 100/2003 B-VG Art. 133 valid from 01.01.1975 to 31.12.2003 last amended by BGBl. No. 444/1974 B-VG Art. 133 valid from 25.12.1946 to 31.12.1974 last amended by Federal Law Gazette No. 211/1946 B-VG Art. 133 valid from December 19, 1945 to December 24, 1946 last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from 01/03/1930 to 06/30/1934

DSG Art. 2 § 36 today DSG Art. 2 § 36 valid from December 1st, 2021 last changed by Federal Law Gazette I No. 148/2021 DSG Art. 2 § 36 valid from May 25th, 2018 to November 30th, 2021 last changed by Federal Law Gazette I No. 24/2018 DSG Art. 2 § 36 valid from May 25th, 2018 to May 24th, 2018 last changed by Federal Law Gazette I No. 120/2017 DSG Art I No. 83/2013 DSG Art. 2 § 36 valid from 01.07.2010 to 31.12.2013 last changed by Federal Law Gazette I No. 133/2009 DSG Art. 2 § 36 valid from 01.01.2010 to 30.06.2010 last changed by Federal Law Gazette I No. 133/2009 DSG Art. 2 § 36 valid from 01/01/2000 to 12/31/2009

DSG Art. 2 § 45 today DSG Art. 2 § 45 valid from May 25th, 2018 to May 24th, 2018 last changed by Federal Law Gazette I No. 120/2017 DSG Art. 2 § 45 valid from May 25th, 2018 last changed by Federal Law Gazette I No. 24/2018 DSG Art. 2 § 45 valid from 01/01/2000 to 05/24/2018

saying

W256 2226003-1/5E

IN THE NAME OF THE REPUBLIC!

The Federal Administrative Court has the judge Mag. Caroline Kimm as chairwoman, the expert lay judge Dr. Claudia Rosenmayr-Klemenz and the expert lay judge Mag. Adriana Mandl as assessors on the complaint of Mag. (FH) XXXX against the decision of the data protection authority of October 11, 2019, GZ: DSB-D124.1456/0003-DSB/2019 right recognized:

A) The complaint is dismissed as unfounded.

B) The revision is not permitted according to Art. 133 Para. 4 B-VG.

text

Reasons for decision:

I. Procedure:

In his complaint of June 25, 2019, addressed to the data protection authority, the complainant essentially submitted that he had requested a correction of incorrect data in a decision from the Federal Ministry of the Interior (hereinafter: the party involved) with the attached letter of April 30, 2019. The party involved has not yet commented on this, which is why he is submitting the present complaint against the party involved in 2019 because of a refusal to correct incorrect data with the relevant authority. In his letter of April 30, 2019, he stated in detail which data in the notification was incorrect and had to be corrected. The data was already wrong at the time of recruitment and also defamatory.

At the request of the authority concerned, the party involved stated in its statement of July 25, 2019 that the complainant's request of April 30, 2014 had actually been overlooked due to numerous similar submissions and now with - attached - addressed to the complainant letter dated July 25, 2019, the complainant was informed that his application could not be granted for reasons explained in more detail.

In relation to this, the complainant stated in a letter dated August 26, 2019, during the hearing of the parties, that the response of the party involved was not only late, but also empty and without content. The statement by the interested party that his request for correction could not be granted because the data had been reproduced correctly was absolutely wrong and did not stand up to closer scrutiny. In his application of April 30, 2019, he provided very precise and extensive information. Probably the biggest mistake in the notification is that it is repeatedly claimed that he triggered the search through his previous illegal behavior. This assertion is false, since he was and is a respectable citizen. Not even the public prosecutor's office claimed that he had triggered the house search through unlawful behavior. The decision was therefore grossly wrong and defamatory. In addition, the public prosecutor's office had terminated the investigation against him without indictment. According to Section 45 (1) DSG, the party involved is responsible for proving the correctness of the data. This proof had not been provided by the party involved in any way. The complainant therefore submits the application to force the party involved to correct the incorrect data without further consultation and to establish the violation of rights by means of a notification. Ultimately, the party involved also admitted in its letter that its academic degree had been misspelled in the notification. The justification given by the party involved, according to which this was a typographical error and the addressee was known, was a ridiculous justification. Under one, the decision of the party involved dated March 4, 2019 that was to be corrected was presented.

With the contested decision of the authority concerned, the complainant's complaint about a violation of the right to rectification was dismissed as unfounded. The complainant had applied for the correction of data in a notification, which was in connection with investigative actions relating to the complainant's claims for compensation under the Police Powers Compensation Act (PolBEG) and not - as required in Chapter 3 of the DSG - inter alia for the purpose of prevention, investigation and disclosure or prosecution of criminal offenses would be processed. It follows that in the present case Art. 16 GDPR and not § 45 DSG should be applied. According to § 8 PolBEG, the party involved is in principle authorized to agree on compensation payments according to the PolBEG and the use of the results of the investigation by the public prosecutor, taking into account the prohibition on excessive amounts, is in any case conceivably suitable or even necessary in order to establish the existence of a claim for compensation according to § 8 PolBEG to assess. For reasons of competence, the authority concerned is not at all able to amend decisions by other administrative authorities. As a result, a person concerned is not unprotected, since the legal remedy of a complaint is open to a decision. If an action is not taken against a notice, a change in content cannot be achieved by requesting a correction under Art. 16 GDPR. It is not overlooked that no ordinary legal remedy is possible against the present decision. However, the complainant has the option of appealing to the courts. A completion - as requested by the complainant - is also out of the question, since this requires the existence of the requirements under Art. 16 DSGVO. A correction of the academic degree in the notification is also out of the question for the same reasons.

The present complaint is directed against this. The complainant disputes the assertion of the relevant authority that Chapter 3 is not applicable. Regarding the alleged unlawfulness of his conduct, it should be noted that the complainant was irreproachable and had always been. The presumption of innocence applies. The party involved is responsible for proving the correctness of the data, namely that he has not acted illegally. This could not explain in a word what illegal behavior he had set. The assertion by the authority concerned that the legal authorization for data processing results from § 8 PolBEG is disputed. Likewise, the claim of the authority concerned, according to which the competence of the authority concerned to assess the admissibility of data use in administrative proceedings is limited to the excessive prohibition, is disputed. If the authority concerned believes that the use of the public prosecutor's results was necessary to assess the claim under Section 8 PolBEG, they overlook the fact that not even the public prosecutor's office actually accused him of illegal behavior. Rather, they only spoke of a suspicion that had dissolved. Contrary to the view of the authority concerned, no appeal is possible in the present case against the decision of the party involved. It must therefore be possible for a notice that is based on false facts and is therefore wrong to be amended and legally reassessed by correcting data. It can never be wrong to correct incorrect data according to DSG, GDPR etc. Not even if it would change the facts determined by another authority. If the completely different title Magister is used instead of Magister (FH), it is pure sloppiness that must also be covered by the right to correction. He therefore submits the application for an oral hearing and the application that the Federal Administrative Court should grant his complaint or rectify the decision.

II. The Federal Administrative Court considered:

1. Findings:

By decision of the party involved dated March 4, 2019, XXXX, the following was pronounced:

[…]

business number [..]

XXXX , Mag. Msc. [...]

NOTICE

Your application for compensation under the Police Authorization Compensation Act (PolBEG) due to the incident of XXXX , regarding the occurrence of damage after a police coercive measure on the property, [..] will be granted in accordance with § 1 in connection with § 2 Para. 1 and § 8 Para. 1 PolBEG, [ ..] was partially granted and found that you were due €2,441.97 in indemnification.

Reason:

"[..]

The request is based on the fact that on XXXX the door of your apartment in [..] was violently opened by police officers on the basis of a search warrant from the public prosecutor's office [..]. They were suspected of having made dangerous threats to police inspectors [...] and their relatives and having instructed others on behalf of the district court chief [...] to refrain from prosecuting officers. The house search in question therefore took place in the course of the investigation by the public prosecutor [..], in which you were suspected of crimes according to § 107 and §§ 12 2nd case, 302 StGB and that for the reason of § 11 (insanity) StGB according to § 190 Z 1 StPO was discontinued.

[…]

From a legal point of view, the following has to be done:

Pursuant to § 1 PolBEG, the Federal Government must, in accordance with the following provisions - regardless of fault - pay compensation for damage caused directly by an organ of the public security service in the exercise of coercive powers through the measures specified in the Weapons Use Act 1969, provided that the coercion is in the area of enforcement exercised by the federal government and was not triggered by the injured party through unlawful conduct.

[…]

With regard to the alleged damage to other devices, however, the claim for compensation is not justified, since it can be assumed that you owned them and that you triggered the coercive measures through illegal behavior (conduct that gives rise to the suspicion of crimes under Sections 107 and 12 2nd case, 15, 302 StGB). According to § 1 PolBEG, illegal behavior is sufficient, culpability is not required, which is why the insanity determined at the time of the offense according to § 11 of the Criminal Code (StGB) does not conflict with the reason for the exclusion of illegal behavior.

[…] The damage to the safe that you claim cannot be compensated for because it was unlawfully triggered […].

For the reasons given, the decision had to be taken in accordance with the verdict.

[..]"

By letter dated April 30, 2019, the complainant addressed the following request to the intervening party:

"Like. (FH) XXXX […]

[...]

Subject: Request for correction of incorrect data according to § 45 DSG and other legal bases

The Ministry of the Interior awarded me compensation in the amount of 2,441.97 euros in a decision dated March 4th, 2019 [..]. The decision turns out to be illegal and unlawful for several reasons. The authors of the notice were demonstrably fully aware of the fact that preliminary proceedings against me by the public prosecutor's office [..] had been discontinued with legal effect without any charges being brought against me. Nevertheless, contrary to the records, it is repeatedly claimed that I acted illegally and this claim was not made in the possible form. This is clear defamation according to § 297 StGB and a violation of the presumption of innocence according to Article 6 Paragraph 2 of the European Convention on Human Rights (EMRK).

[...]

I hereby rely on my right to correct personal data and to restrict processing in accordance with Article 45 DSG and Article 16 GDPR and any other conceivable legal basis. The incorrect data was already incorrect at the time of creation, so I request the correction of this incorrect data.
[…]

From this it follows that all formulations in which it is claimed that I am supposed to have committed the act are grossly incorrect and subject to my request for correction. You must correct the data immediately.

If a subsequent change would be incompatible with the purpose of the documentation, then you have to make the correction "by means of a supplementary declaration" according to § 45 Para. 1 DSG. In this case, I request that the corrected statement be attached to the document as a supplementary statement in such a way that everyone who reads the document automatically receives the corrected statement. In addition, according to Section 45 (6) DSG, you must explicitly inform all recipients of the notification of the correction. The paper files must also be corrected accordingly.

Item 1: Correction of incorrect data

Page 4, 1st paragraph:

[...]

Page 4, 2nd paragraph:

[...]

Page 6, 4th paragraph:

[...]

Page 6, 5th paragraph:

[….]

Point 5: Academic degree wrong several times

[...]

My academic degree was spelled incorrectly several times in the decision that is the subject of the proceedings. I apply for the correction of the academic degree. You can find out how to write this correctly on the letterhead.

Final Considerations:

These changes entail legal consequences because it has been clearly established that I have not engaged in any illegal behavior and therefore the reason for which I was denied compensation for the destruction of the equipment no longer applies. […]

I expressly point out that it can by no means be assumed that all formulations are correct. I have merely referred to a few slanders in this application.

[...]

Yours sincerely

[..]"

By letter dated July 25, 2019, the intervening party informed the complainant as part of the proceedings he had initiated before the relevant authority for an alleged violation of the right to rectification:

"[..]

Your request for correction in accordance with Article 16 GDPR of the processed data of the notice [..] of March 4, 2019 cannot be granted, since the data of the notice processed by the Federal Ministry of the Interior correctly reflects the content of the notice.

As stated in the notice of appeal in the decision, no ordinary appeal is permitted against this. Among other things, the decision cited points out that challenging the decision at the administrative or constitutional court is inadmissible. Attention is drawn to the possibility of asserting claims for compensation by filing a lawsuit against the federal government in accordance with Section 9 of the Police Compensation Act.

A correction of the spelling mistake of your academic title will not be made. The spelling mistake is based on a mistake, but you are the addressee without a doubt. You also accepted the Rsa letter.

The Federal Ministry of the Interior regrets that your request of April 30, 2019 was overlooked due to your numerous similar submissions.

[..]"

2. Evidence assessment:

These (otherwise undisputed) findings result from the submissions made in the proceedings and the letters submitted therein. The Federal Administrative Court has no doubts as to the correctness of these letters and their content, and no party has raised any such doubts.

3. Legal assessment:

In the present case, the complainant objects to the fact that the decision of the party involved of March 4, 2019 accused him of unlawful behavior and that the compensation sought by him was partially rejected, although the investigations conducted against him by the public prosecutor's office were already legally binding at the time they were created without charges had been set. These are deliberate false reports by the party involved. The complainant therefore requests the correction of all (detailed) wording in the notification of March 4, 2019, which would imply illegal behavior by the complainant, "according to Section 45 of the Data Protection Act (DSG) and other legal bases". In addition, his academic degree had been misspelled several times in the notification and he also requested a correction in this regard.

§ 45 DSG is located in the 3rd main part of the DSG.

According to Section 36 DSG, the provisions of Chapter 3 apply to the processing of personal data for the purpose of preventing, investigating, uncovering or prosecuting criminal offenses or the execution of sentences, including protection against and averting dangers to public security and for the purpose of national security security, intelligence and military self-defense.

With the decision in question, the party involved discussed the complainant's application for compensation under the Police Authorization Compensation Act (PolBEG).

Since the desired correction thus concerns data processing that was not carried out for the purposes regulated in Chapter 3, the present correction request - following the authority concerned - is to be assessed according to the GDPR.

According to Art. 16 GDPR, the data subject has the right to request the person responsible to correct incorrect personal data concerning them without delay. Taking into account the purposes of the processing, the data subject has the right to request the completion of incomplete personal data - also by means of a supplementary statement.

The right to correction according to Art. 16 GDPR therefore only exists with regard to personal data that is incorrect (cf. Kamann/Braun in Ehmann/Selmayr (eds), General Data Protection Regulation (2017), Art. 16, para. 13).

Art. 4 Z 1 GDPR defines personal data as “all information relating to an identified or identifiable natural person (hereinafter “data subject”)”. According to this provision, a natural person is considered to be "identifiable" who, directly or indirectly, in particular by association with an identifier such as a name, an identification number, location data, an online identifier or one or more factors specific to the expression the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

In its decision of 17 July 2014 Cases C-141/12 and C-372/12, YS et al. [ECLI:EU:C:2014:2081]), the Court of Justice of the European Union (ECJ) stated on the previous regulation of Art 4 Z 1 DSGVO, namely Art. 2 lit. a RL 95/46/EG that a (in a The legal analysis on the granting of a residence permit containing the draft document preparing the final decision may contain personal data of the applicant, but it is not data within the meaning of Art. 2 lit. a of the Directive. Such a legal analysis does not involve information about the person applying for the residence permit, but at most, insofar as it is not limited to a purely abstract interpretation of the law, information about how the competent authority uses this right in this case assess and apply the applicant based on the personal data available to her. This interpretation results not only from the wording of Article 2 lit. On the other hand, the Directive is not aimed at promoting transparency in the decision-making process of state bodies or good administrative practice. A legal analysis by a government agency authorized to do so cannot therefore be the subject of a review or correction and therefore no information either (cf. by implication ECJ, 20.12.2017, Nowak, C-434/16 [ECLI:EU:C:2017: 994], according to which answers from a candidate in a job-related examination and any comments from an examiner are (also) personal data within the meaning of Article 2 lit to ensure the protection of the right to privacy of individuals with regard to the processing of data concerning them would be disregarded).

Nothing else can apply to the final legal assessment of an administrative matter by means of a decision. Here, too, an administrative matter is legally assessed by the competent state agency on the basis of – sometimes also personal – data. According to what has been said above, however, this is not information about the applicant, but only information about how the competent authority (legally) assesses an administrative matter on the basis of the (sometimes also personal) data available to it.

Since the GDPR according to Art. 1 - like Directive 95/46/EC - is intended to guarantee the protection of data subjects when processing personal data, but a control of official decisions cannot be derived from this objective, there are no reasons to issue a decision subject administrative authority to a right to rectification under Art. 16 GDPR (cf. also Haidinger in Knyrim, DatKomm Art 17 GDPR, Rn 6 (as of December 1st, 2021, rdb.at with reference to the ruling practice of the data protection authority and formerly the data protection commission).

Incidentally, it should not be overlooked that the amendment of notices outside of legal protection proceedings is already regulated by law under restricted conditions in the AVG. In contrast, an unrestricted possibility of correcting notifications under the GDPR would go against trust in the existence of notifications and thus the constitutional principle of legal certainty (cf. Hengstschläger/Leeb, AVG § 68 (as of March 1st, 2018, rdb.at).

However, it follows from this that a correction of a notification cannot be based on Art. 16 GDPR. The authority concerned therefore rightly dismissed the complainant's complaint, which was (solely) aimed at the correction of data in a notification, as unfounded. A closer examination of Art. 16 GDPR and its requirements, in particular with regard to the legal correctness of the data processing at hand, could not be carried out with this result.

It was therefore to be decided accordingly.

According to § 24 para. 4 VwGVG, the administrative court can, unless otherwise provided by federal or state law, refrain from a hearing, regardless of a party’s application, if the files indicate that the oral discussion does not give reason to expect any further clarification of the case, and Neither Art. 6 Para. 1 ECHR nor Art. 47 CFR preclude the omission of the hearing.

Since in the present case only legal questions that had already been answered by the previous case law had to be clarified, it was possible to refrain from holding an oral hearing despite a party application pursuant to Section 24 (4) VwGVG.

Re B) Inadmissibility of the revision:

Pursuant to § 25a Para. 1 VwGG, the administrative court has to pronounce in its ruling or resolution whether the revision is admissible in accordance with Art. 133 Para. 4 B-VG. The statement must be briefly justified.

The case law in question is consistent with the case law cited. Due to the clear legal situation, this is not a legal question of fundamental importance. There are also no other indications of a fundamental importance of the legal question to be solved.

There are no other indications of a fundamental importance of the legal question to be solved.